R.A. Mehta, J.
1. A short and simple question has taken considerable time at the lengthy hearing of this Revision Application. The question is whether the trial court was justified in granting the plaintiffs application, for joining additional defendants under Order 1, Rule 10(2), C.P.C. They are the specified authority, competent authority and State Government under the Urban Land (Ceiling & Regulation) Act, 1976.
2. The respondent No. 1 original plaintiff, has filed Special Civil Suit No. 70/80 in the Court of the learned Civil Judge, Senior Division, Baroda, for a declaration that the agreement and irrevocable power of attorney dt. 24th March 1977 and the affidavit-cum-declaration dt. 10th February, 1978 are valid, sabsisting and binding on the defendant (the petitioner herein) and for due performance of the agreement and other directions for the said purpose and for a permanent injunction against breach of the said contract and irrevocable power of attorney and from interfering and not obstructing the opponent-plaintiff from acting there under and representing before the authorities under the Urban Land (Ceiling and Regulation) Act, 1976 and for restraining the defendant from making any application for revocation or cancellation of the scheme under the Act and that the 'defendant be ordered and decreed by mandatory order to cancel the letter written by him to the competent authority or any other authority or authorities intimating to them about the cancellation or revocation and termination of the said agreement and/or the irrevocable power of attorney.'
3. The case of the plaintiff is that the defendant had appointed the plaintiff as his constituted attorney by an irrevocable power of attorney and entered into the agreement in respect of the property known as 'Laxmi Vilas Palace Estate' situated in the city of Baroda admeasuring about 707 Acres and in respect of that land a scheme for construction of dwelling units for the accommodation of the weaker section of the society as envisaged under Section 21(1) of the said Act was to be made and implemented and for that purpose the parties had entered into the suit agreement and the defendant No. 1 had appointed the plaintiff as his constituted attorney under the irrevocable power of attorney and in pursuance of that authority, the plaintiff had got the scheme sanctioned by specified authority.
4. It appears that thereafter disputes have arisen and the defendant has terminated the agreement and the power of attorney. In the pleadings filed by the defendant along with an affidavit and documents, certain contentions have been raised briefly to the effect that the approval given by the specified authority to the scheme is illegal, inoperative, incomplete and on the basis of such approval, the competent authority cannot validly make any declaration under Section 21 of the Act and the guidelines issued by the State Government are ultra vires the Act and not binding to the authorities under the Act. It is contended that under the provisions of Section 21 of the Urban Land Ceiling Act, the competent or of nonresidential units or any structures other than the dwelling under for the specified authority has no jurisdication to sanction scheme involving construction weaker section of the society and any guidelines issued by the government authorising or permitting construction of any non-residential units or structures other than dwelling units for weaker sections of the society are or would be ultra vires the said Act. It is denied that the Civil Court would have no jurisdiction to consider whether the scheme is approved by the specified authority or whether the scheme as approved is not in accordance with the Act. It is contended by the defendant that the court is bound to consider the question of legality of the Acts sought to be enforced. It is also contended by the defendant that the specified authority and the competent authority have acted beyond their jurisdiction. It is contended that it is not open to the authorities under the Act to sanction any shopping cum service centre in the scheme of dwelling units for the weaker section of the Society and it is contended that any guideline in so far as it permits or authorises construction of structures other than dwelling units, is ultra vires the said Act, and in breach of the provisions of Sections 20 and 21 of the Act. It is also contended that the weaker section of the society is not defined in the Act and is vague and general and therefore the sanction of the scheme is void in law.
5. In view of these contentions by the defendant, applications exhs. 71 and 87 were given by the plaintiff for adding three defendants, namely, the specified authority, the competent authority and the State Government, and for consequential formal amendment.
6. In view of the aforesaid contentions, the plaintiff had made these applications on the ground that the presence of these parties would be necessary and proper in the suit and for effectively enabling the court to effectually and completely decide the questions arising in the suit.
7. This application was opposed by the defendant. It was also initially opposed by the proposed defendants by filing their affidavits and it was contended by them that they are neither necessary nor proper parties and they should not be joined in the suit. However, ultimately during the course of the argument, the learned District Government Pleader submitted a purshis to the trial court stating that the proposed parties had no objection to being joined as defendants in the suit. Thus the plaintiff is dominus litis and the proposed defendants want themselves to be added. The petitioner (original defendant) contends that they are neither necessary nor proper parties and they should not be joined and the trial court had no jurisdiction to join them as additional defendants.
8. The learned Counsel for the petitioner original defendant has argued that these parties are not even proper parties much less necessary parties. As against that the learned Counsel for the original plaintiff-respondent has argued that they are both necessary and proper parties. The learned Assistant Government Pleader appearing for the proposed parties, has submitted that they have no objection to being joined as defendants in the suit.
9. Order 1, Rule 10(2). C.P.C. reads as under:
Court may strike out or add parties: (2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the same of any party imporperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
On perusal, it is clear that any person who ought to have been joined as defendant is necessary party and because of whose absence the suit is bound to fail and the court cannot grant any relief against such absent party. Form the prayer clause it is clear that no relief is claimed against any of these parties and even in their absence the rights of the plaintiff against the original defendant can be adjudicated upon. Therefore, these defendants cannot be said to be necessary parties to the suit. The word 'ought to have been joined' have a reference to necessary parties in the sense that 'the suit cannot be effectually disposed of without their presence'.
10. The learned Counsel for the petitioner has argued that the added defendants are not necessary parties because even in their absence the suit can be decided between the parties and submitted that they are not even proper parties, because even in their absence, the suit can be decided between the parties and the court can effectually and completely adjudicate upon all questions involved in the suit. Therefore, the argument comes to this if a party is not a necessary party, it is not even a proper party, necessarily. This cannot be accepted. To determine whether any party is proper party or not, the test of necessary party cannot be applied. If we are to apply the test, whether the presence of those parties is necessary for decision in the suit, that would be a test of necessary party and not of proper party. The proper party is that which is not a necessary party and in whole absence the suit can be effectively disposed of and yet their presence is considered necessary by the court. It does not mean that the court can add any party as proper party. The court has a judicial discretion to consider whether the presence of such party is 'necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit'. These words 'necessary to enable the court effectually and completely adjudicate' necessarily mean that these parties are other than necessary parties and, therefore, the test of necessary party cannot be applied to consider whether the presence of these additional parties is necessary to enable the court effectually and completely to adjudicate upon the questions in the suit'. In the case of Razia Begum v. Sahebzada Anwar Begum and Ors. : 1SCR1111 the Supreme Court held that 'the question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case: but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code, and in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation'. The Supreme Court further held that 'where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in 'a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy'. The Supreme Court also observed at page 895 that 'the result of declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually before the court, but generations to come, and in view of that consideration, the rule of 'present interest', as evolved by case law relating to disputes about property does not apply with full force'. The Supreme Court also referred to ILR 5 Madras 52 which had come to the conclusion that 'a material Question common to all the parties to the suit and to third parties, should be tried one for all'. It was also held that 'to secure this result, the court had a discretion to add parties-a discretion which has to be judicially exercised, that is that by adding the new parties the court should not inflict injustice upon the parties already on the record, in the sense that they would be prejudiced in the fair trial of the Questions in controversy'.
11. The Supreme Court also observed (at page 892) as under (in para 8):
It is clear, therefore, that if the plaintiff had been less disingenuous and had impleaded the first and the second respondents also, as defendants in the suit, the latter could not have been discharged from the action on the ground that they had been unnecessarily impleaded and that no cause of action had been disclosed against them. They would certainly have been proper parties to the suit. This is every important aspect of the case which has to be kept in view or in order to determine the question whether the respondents Nos. 1 and 2 had been rightly added as defendants on their own intervention.
The Supreme Court also referred to the judgment in the case of United Provinces v. Mt. Atika Begum and Ors. wherein a view was taken that the State as the guardian of public interest should not be called upon to show some pecuniary or proprietory interest or interest in public revenue on the questions involved to be added as a party. Varadachariar, J. also observed 'that in a case where the State intervention was concerned, it must be decided on broad grounds of justice and convenience and not merely as turning on the interpretation of a particular rule in the Civil Procedure Code.
12. In the present case, land admeasuring more than 700 acres covered under the Ceiling Act is the subject-matter in dispute between the two private parties. They had agreed to avail of the provisions under Section 21 by getting a scheme sanctioned for the weaker section of the society and if everything had gone right, perhaps four to five thousand dwelling units for weaker section of the society would have come up in a greatly congested city like Baroda. If there had been no scheme, the land would have been available as surplus land to the government to be put to use for public purposes generally including the needs of needy people of the society. However, unfortunately because of the present litigation the public interest suffers and it is not known for how many years it will continue. However, nothing may turn on that in the present revision before me.
13. When questions have been raised by the defendant regarding the validity and effect the sanction issued by the specified authority and apprehended action of the competent authority making a compulsory declaration and regarding the validity of the guidelines issued under the Act by the State, how can it be said that these authorities are strangers or busy bodies and have no interest in the questions arising in the suit. The learned Counsel for the petitioner has submitted that the interest of these parties is neither legal nor material interest; they are not affected at all by the result of the suit and whether the plaintiff succeeds or the defendant succeeds, they are not to be affected and whether the scheme fails or not, it is no concern of these authorities; if the scheme fails and any legal consequence follows, it will follow as a matter of law and the authorities will be free to take such legal steps as they may be advised, but there no question of they having any interest in the present suit; litigation. It is not possible to uphold such contention. It is not necessary that they should have a legal or material interest in the subject-matter of the suit. But if they had bona fide and vital interest in the questions in the suit before the court, and if the court is also of the opinion that it would be in better position to effectually and completely adjudicate upon the questions before it and for that their presence is necessary, it cannot be said that the court has committed any error much less error of jurisdiction even in the limited sense of Section 115, C.P.C. In this connection the petitioner relied on the Supreme Court judgment in the case of Chaube Jagdish Prasad and Anr. v. Ganga Prasad Chaturvedi : AIR1959SC492
Therefore, if an erroneous decision of a subordinate court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out.
and it was held 'that Section 115 C.P.C. applies to matters of jurisdiction, alone and if a subordinate court has jurisdiction to make the order it made and has breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere; but if on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested then the power of interference under Section 115, C.P.C. becomes operative'. Joining of parties in a suit is not necessarily a question of jurisdiction. The learned Counsel for the petitioner has contended that the question in to be decide by the court under Order 1, Rule 10(2) is a question of jurisdictional fact and on such decision the court assumes jurisdiction to add a party. Further if the decision of the; court adding of the party is erroneous, there is erroneous assumption of jurisdiction to add new parties. It is not possible to agree with this contention. As pointed out-earlier, the Supreme Court has held (in Ruzia Begum's case, supra), that the question of addition of, parties under Order 10 of Order I is generally not one of initial jurisdiction of the court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. No doubt the Supreme Court has further observed that in some cases it may raise controversies as to the power of the court in the limited sense of jurisdiction under Section 115 C.P.C, but the general principle laid down by the Supreme Court is that generally this question is not of Jurisdiction but of judicial discretion. If a court refuses to joint parties, it may have a different effect. However, in the present case that question does not arise.
14. The learned Counsel for the petitioner has referred to the judgment of this Court in the case of Rasiklal Shcmkerlal Soni v. Natverlal Shankerlal Upadhyaya and Ors. 16 G.L.R. 533, wherein it has been held that there is no Jurisdiction to add a party unless that party is a necessary party or proper party merely because that would save the third person the expense and botheration of a separate suit for seeking adjudiction of a collateral matter, which was not directly and substantially in issue in the suit into which he seeks inclusion. The learned Judge observed that general rule is that the plaintiff is the master of his suit. He is dominus litis. He cannot be compelled to tight against a person against whom he does not wish to tight and against whom he does not claim any relief. It is discretionary to grant a relief under Order 1, Rule 10(2) of C.P.C. In exercising the discretion the court will invariably take into account the wishes of the plaintiff before adding a third person as defendant to his suit. Only in exceptional cases, where the court finds that the addition 'of the new defendant is absolutely necessary to enable it to adjudicate effectively and completely the matter in controversy between the parties, will it add a person as a defendant without the consent of the plaintiff'. It is thus clear that the plaintiff could have included these defendants in his original plaint. Now he is seeking to add them by the present application. Not only the plaintiff wants them to be joined as defendants, these defendants themselves also agree to be joined as defendants. The learned Counsel for the petitioner argues that the contentions raised by the defendants are merely collateral in the suit and they are not directly or substantially in issue in the suit. It is true that the plaintiff has mainly sued the defendant petitioner for specific, performance of the agreement but the issues which are raised by the defendant regarding the validity and effect of the scheme approved by the specified authority and regarding the guidelines issued by the State Government are also the matters directly and substantially in issue, between the parties and the fate of the suit may depend on the decision of these issues. In fact if the defendant were to be a plaintiff and seek a declaration on these issues, these authorities would be absolutely necessary parties and in the present suit where he is raising the same contentions as defendant, he is opposed to them being joined as proper parties. The issues are directly and substantially the same and it would make no difference in principle whether the petitioner is a plaintiff or a defendant in the suit. The court is concerned with the questions and controversies and if the court is of the opinion that the presence of these parties is necessary to enable it to effectively and completely decide the question, it cannot be said that the court has committed any error whatsoever.
15. The learned Counsel for the petitioner also referred to the judgment of this Court in the case of Noormohmad Hajishama v. Anand Mohan Bhardwaj and Ors. 22 G.L.R. 332 and contended that addition of a party confers certain rights on the added party, such as, right of appeal, etc. and it would not be proper in a case where the appearance of a party is not absolutely necessary to implied and thereby impose consequences and obligations on the plaintiff. In the present case the plaintiff wants these parties to be joined but it is true that the consequences of joining parties would be the same for the plaintiff and the defendant. But if the parties can be legally and properly joined, it has the same consequences as if they were made parties from the beginning and it cannot be contended that merely because a party is joined or added, there is automatic prejudice to the objecting party. If the parties are added, they will have the same rights as if the original impleaded including the rights of filing affidavits, leading evidence, cross-examining of witnesses and even to file appeal. Because of these consequences, the learned Judge has rightly observed that the parties may not be added too lightly but at the same time it has to be seen that the parties having the vital interest in the subject-matter and real capacity to assist the court to effectively and completely decide the questions and controversies are not lightly excluded.
16. In the present case, if these parties are joined as defendants, whether any relief is claimed against them or not, the findings on issues concerning the Ceiling Act will bind these added parties and, they will be actively and independently before the court and assist the court in arriving at its findings. They are the proper persons who can throw considerable light on these issues raised by the defendants.
17. The learned Counsel for the petitioner has also relied upon the judgment in the case of Firm of Mahadeva Rice and Oil Mills and Ors. v. Chenimalal Goundar : AIR1968Mad287 wherein it is held that 'no amount of assertion on the part of the parties to a lis to the effect that it would avoid multiplicity of suits, that it would be convenient for purposes of trial, that it would not cause prejudice to any party, would be of any avail' unless the party proposed to be joined is necessary or proper party. The Madras High Court has further observed that 'it is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject-matter which could still have been decided in the pending suit itself, and the proposed party has a defined, subsisting, direct and substantive interest in the litigation, which interest is either legal or equitable and which right is cognisable in law. The court also held that 'considerable prejudice would be caused to the opposite party when irrelevant matters are allowed to be considered by courts by adding a new party whose interest has no nexus to the subject-matter of the suit.' In the present case, it is not possible to say that the proposed defendants have no nexus to the subject-matter of this suit. It is true that these parties may not have any interest in the plaintiff or the defendant succeeding or failing in the suit but they have vital and lead interest in the issues directly and substantially raised by the defendant and on these issues the defendant cannot be allowed to succeed in absence of these parties. If the defendant has a good and valid cause on these issues, the court will decide the same in accordance with law in presence of these parties. But the defendant cannot get away with a finding on these issues in absence of these parties.
18. It was also submitted by the learned Counsel for the respondent-plaintiff that even if there was any error of the trial court in passing the impugned order, the same could not be interferred with by the High Court under Section 115 of the Code, in view of the proviso to that section. In the submission of the learned Counsel for the respondent, assuming that the impugned, order was bad on any ground and it satisfied all the conditions of Section 115(1)(a), (b) and (c), the proviso puts a further fetter on the powers of the High Court, Section 115(1) provides for revision to the High Court if the subordinate court has committed any error covered under Clause (a), (b) and (c). However, even if all these conditions are satisfied, the High Court is not required and cannot exercise the revisional powers if the case falls under the proviso which has been added by way of amendment in 1976. It reads as follows:
Provided that the High Court shall not under this section vary or. reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding except where-
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
19. Therefore until either of these two conditions are satisfied the High Court shall not vary or reverse any order. Clause (a) of the proviso would not obviously apply because J the proceeding would not have ended in favour of the petitioner by decision in the revision application. The learned Counsel for the petitioner contended that considerable prejudice will be caused to the petitioner if these parties are allowed to be added, because added parties will have the same rights as original party including filing the pleadings, leading evidence, cross-examination of witnesses and even filing of the brief. However, this would not cause failure of justice or irreparable injury. By merely joining them as a party, no failure of justice is occasioned and no irreparable injury is caused to the petitioner. On the contrary, if they have not been joined as parties, it is likely that failure of justice might have resulted and that by the impugned order failure of justice is prevented, if the petitioner is required to contest against these added defendants, and if these defendants raise any pleas to the prejudice of the petitioner, the petitioner can be compensated in terms of money and it cannot be said that there is any irreparable injury by joining of the defendants. In view of the fact that the matter has been argued at length on all the questions, I have decided this question of proviso also. Otherwise on merits also I Find that the impugned order joining these defendants is legal and proper order, which is not required to be disturbed.
20. In the result, the Revision Application fails and is dismissed with cost. Rule discharged. Interim relief vacated.